Over time, other rules may ensnare unwary businesses, notes LeClair Ryan Attorney Janine Anthony Bowen
Atlanta, Ga. (October 27, 2016) — As companies seek to cut costs and improve efficiency, a growing number of businesses encourage or allow their employees to use their own digital devices at work. “Navigating the IT, privacy, security and intellectual property issues was difficult enough before Bring Your Own Device (BYOD) became common,” says attorney and engineer Janine Anthony Bowen, a shareholder in national law firm LeClairRyan’s Atlanta, Ga. office. “But as the trend surges – and the law catches up with it – companies should carefully review their BYOD policies.”
Challenges range from liability for unpaid overtime to stiff legal penalties for failing to preserve data that may be subject to the eDiscovery process, adds Bowen, a member of LeClairRyan’s Privacy and Data Security Practice.
“Non-exempt employees checking email at home after hours – is that work for which they should be paid overtime? Likely so,” she explains in a recent blog, Bring Your Own Device (BYOD) – Be Smart. “Are employers capturing this time? Probably not. Are employers getting in trouble because of this? Yes.”
Bowen’s advice: “Either capture all work-related time for non-exempt personnel or do not allow non-exempt employees to access work-related content after working hours.”
Businesses may also get into hot water if they don’t reimburse employees for expenses associated with their personal digital devices. “If your state law requires that employers reimburse employees for all expenses incurred in discharging their work responsibilities, even if your employees don’t have any additional expenses associated with their work-related use, you might want to consider reimbursement for some portion of the monthly data charges and/or the device cost,” she warns. “California has already weighed in, and other states will likely follow.”
Companies may also need to be able to keep track of, and preserve, company data that’s on employees’ digital devices. “Data from on premise, cloud-based and mobile storage devices are all potentially in play as part of the e-discovery process,” writes Bowen “The penalties for failing to get this right can be stiff. If you can reasonably anticipate litigation, and there is discoverable content on your employees’ devices, the rules may require you to find it and keep it.”
But don’t take an overbearing approach to this, since revised federal rules and approach to proportionality might impact the issue, adds Bowen. Approach it carefully, and consider consulting with litigation counsel or an e-discovery specialist, she advises.
BYOD issues can even impact a company after an employee’s termination or voluntary departure. “Many corporate BYOD policies allow or require an employee’s phone to be wiped in the event the device is lost or the employee leaves,” notes Bowen, pointing out that this can protect the employer’s confidential, sensitive or proprietary information. “Courts have held this permissible, even when the wipe is complete – deleting all the personal information, including pictures of the phone’s owner. But, honestly, it’s kind of rude to wipe someone’s phone and put it back to its factory settings when they quit.”
As an alternative, a company may wish to partition the memory so that only the work-related areas are wiped upon a departure. Or, “at a minimum, explicitly make your employees aware of when a device may be wiped and what a wipe will do to their devices,” she advises. “If they know the potentially drastic results to their personal data, they may actually prefer two devices.”
BYOD has advantages for both the employee and the employer, “But you need to think it through, on a regular basis, and share some of the results of your thinking with your employees,” Bowen adds. “Both parties are better off with more information, not less. Be smart, just like your phone.”
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As a trusted advisor, LeClairRyan provides business counsel and client representation in corporate law and litigation. In this role, the firm applies its knowledge, insight and skill to help clients achieve their business objectives while managing and minimizing their legal risks, difficulties and expenses. With offices in California, Connecticut, Delaware, Georgia, Maryland, Massachusetts, Michigan, Nevada, New Jersey, New York, Pennsylvania, Rhode Island, Texas, Virginia and Washington, D.C., the firm has approximately 380 attorneys representing a wide variety of clients throughout the nation.
